Adoptive Couple v. Baby - PowerPoint Presentation

Slide1

Adoptive Couple v. Baby

Girl

:

A Review of the Decision and Relevant ICWA Provisions

Terry Cross, MSW, NICWA Executive DirectorSlide2

For Colonialism to Succeed

Take Territory – Land

Take Natural Resources – Energy/Food

Take Sovereignty – Disrupt Leadership and Governance

Take Away the Legitimacy of

Thought – Worldview, Language, Spirituality, Healing

Take the ChildrenSlide3

Changes in the 1970sAssociation on American Indian Affairs Study

Findings included:25

– 35% of all Indian children had been removed from their families and placed in care.85% of those children were being placed in non-Indian homes or institutions. Slide4

Indian Child Welfare ActIn response to the overwhelming evidence from Indian communities that the loss of their children meant the destruction of Indian culture, Congress passed the Indian Child Welfare Act in 1978.Slide5

Indian Child Welfare Act Congress acknowledged that, “

there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”Slide6

What Does ICWA Do?Establishes minimum federal standards for state removal of Indian children from their familiesProvides framework for Indian tribes to exercise their sovereign authority over child custody and to operate child welfare programsSlide7

What Does ICWA Do?Protects the right of Indian children to grow up with their own parents, extended family and tribe and all rights associated with tribal citizenship

Protects Indian parents from unwarranted or unscrupulous removal of their children, and their rights to due process Protects the rights of tribes to protect their citizens and to exercise their sovereign authority over child custodySlide8

Voluntary Consent Under ICWA: A Review

§

1913(a);(c)

Parents can voluntarily consent to the termination of their parental rights and the adoption of their child.

Consent

must

be executed in writing after the child is at least 10 days old: Consent must be recorded before a judge (or magistrate) in a court of competent jurisdiction; and The judge must also certify that the terms and consequences of consent were fully explained and understood--in the appropriate language

The placement preferences of ICWA must still be followed in voluntary adoptive placements (this has changed, somewhat due to the Baby Veronica case); however, a parent’s desire for anonymity must be considered.Slide9

Voluntary Consent: Adoption Considerations

§

1913(a);(c)

Consent must be obtained by BOTH parents

If voluntary consent cannot be obtained from both parents then the rights of the non-consenting parent must be terminated by involuntary procedures (this is what was attempted in the Baby Veronica Case)

An unwed father must be treated as a father if he has acknowledged or established paternity:

Filing an affidavit of parental rights, asserting his right as a parent in a court of law, proof that he is a punitive father Acknowledgement of paternity does not have to meet state paternity standardsThis question went unanswered in the Baby Veronica caseSlide10

Voluntary Proceedings: Adoption Consent Contents

§

1913(a); FR E.2

Name and birthdate of child

Name of tribe and tribal membership #

Name and address of consenting parent

Name and address of the person/entity through whom the adoptive/pre-adoptive placement was arrangedParents’ right to w/draw consent at any point before an entry of order terminating parents’ rightsRight to be notified if the adoption is set aside or vacatedRight to have the proceeding in closed courtSlide11

Voluntary Proceedings: Practice Tips

Good practice vs. minimum requirements of the law considerations

While notice is not required by federal

law – do it,

tribes are allowed to intervene at any point & placement preferences apply (ex. OK/WA

)

While the contents of the consent are not required the rights and consequences of relinquishment must be discussed so inclusion makes senseSlide12

Voluntary Adoptions: Practice Tips

Key considerations in good practice include:

Involve all people affected by placement (tribe and family members

) (including unwed fathers)

Use effective planning and decision making processes (e.g. family group

conferencing, father)

Explore alternatives to adoption (relative care and guardianship)Ensure that collateral workers understand these principles and have skills to implement (i.e. ICPC, contract agencies)Slide13

Voluntary Proceedings: Withdrawal of Consent

Parent has the right to withdraw consent to the

adoption

of an Indian child or

termination of parental rights

at

any time prior to the entry of a final decree.Note: Consent to TPR may not be undone if the TPR decree is entered, EVEN if the adoption decree has not yet been finalized.If consent was given under fraud or duress, parents may petition the court to vacate the adoption decree up to two years after the adoption.Slide14

Adoptive Couple v. Baby GirlSlide15

Quick Review of the Facts

Dusten

and Mother were engaged

1 month later Veronica was conceived

After learning of pregnancy Father tried to move wedding up—to support mother

Mother broke off engagement while

Dusten

was in pre-deployment training at Fort SillSlide16

Quick Review of the Facts

Text messages were exchanged

Mother,

without

informing father placed Veronica for adoption

Incorrect

notice was sent to Cherokee Nation (misspelled name and wrong birthdate of father)

Immediately after Veronica’s birth she was moved to a pre-adoptive placement in SC

ICPC paperwork did not identify Veronica as having native heritageSlide17

Quick Review of the Facts

4 months after Veronica's birth and placement

Dusten

received notice of the pending adoption (delayed notice)

The next day

Dusten

contacted a lawyer and requested a stay of the adoption proceedings

He stated that he sought custody and did not consent to the adoption

His paternity was confirmed via paternity testSlide18

Lower Court Decision

The

South Carolina Court(s) a

pplied ICWA and:

Found

t

hat dad’s parental rights could

not be involuntarily terminated because of the protections provided in ICWA 1912(d)&(f),

The adoption was denied,

F

ather was given custodySlide19

Questions Before the Court

Does ICWA’s definition of “parent” require unwed fathers to meet state law requirements to “acknowledge or establish” paternity?

Does ICWA apply when the child is not a part of an existing Indian family?

Child never lived with Indian parent

Indian father is viewed as never having had legal or physical custody

Slide20

Question 1: Paternity

The Court assumed that

Dusten

met ICWA’s definition of “parent” (without actually deciding)

Effect on future cases:

The interpretation of “acknowledge or established” under ICWA

was unaffectedSlide21

Question 2:

Application

Limits

The Existing Indian Family Exception was

not

accepted

A different scheme was created

by the

Court to limit application

B

ased

on statutory interpretation.

The interpretation

only limits the rights of parents under two provisions of ICWA, the other protections of ICWA still apply to these parents. Slide22

Question

2:

Application Limits

No

termination of parental rights may be ordered … in the absence of a determination, supported by evidence beyond a reasonable doubt…that the

continued custody of the child by the parent

… is likely to result in serious emotional or physical damage to the child

.

25

U.S.C. § 1912 (f

)

The Court found that these TPR protections only apply when a parent has legal or physical custody of the child at some point in time prior to the TPR/Adoption

The Court found that Dusten

, under state custody laws in OK/SC had neither legal or physical custody, prior to the TPR/AdoptionSlide23

Question 2:

Application

Limits

Effect on future cases:

Parents who do not have legal or physical custody at

some point in

time

prior to

TPR/Adoption may not have the protection of the ICWA standards

Breyer

warns that this could exclude “too many” fathers, and narrows the circumstances

Questions about

use of qualified expert witness, 1912(e) where father has not had custodySlide24

Question 2:

Application

Limits

Any

party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed

to prevent the breakup of the Indian family

and that these efforts have proved unsuccessful

.

25 U.S.C. § 1912

(d)

The Court found that

this TPR protection is not required to prevent the break up of an Indian family when a parent abandons a child before birth

and

has never had physical or legal custody of the child The Court found that Dusten, had abandoned the child and never had physical or legal custodySlide25

Question 2:

Application

Limits

Effect on future cases:

Parents who are considered to have abandoned their child and had no physical or legal custody are not guaranteed Active Efforts.

Breyer

warns that this could exclude “too many” fathers, and narrows the circumstances.

Questions about foster care application.Slide26

Additional Issue Raised: Placement Preferences

In

any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families

.

25

U.S.C. § 1912

(a)

The court found that these placement preferences are not triggered until a family under these preferences has filed for an adoptionSlide27

Additional Issues Raised: Placement Preferences

Effect on future cases:

P

rivate/voluntary

adoption caseworkers or facilitators may feel they no longer have a legal obligation to seek out family, tribal member or other Indian families.

What if a placement preference home filed for a guardianship instead of an adoptive placement?

Questions about integration of other state and federal laws

(

e.g. Fostering Connections:

notice

to relatives, placement preference for relatives, higher state law standards).Slide28

Constitutional Issues

Majority–

“Such an interpretation would raise equal protection concerns”

When a father abandons a child and refuses to pay any support, maybe helps decide to place the child for adoption, then last minute “plays the ICWA trump card” to override mothers decision.

Thomas– Maj.

Concurrance

( gives ow

n opinion)

Indian

Commerce Clause argumentSlide29

What happened to Veronica?

Supreme Court opinion appeared to created a path for Veronica to remain with

Dusten

.

South

Carolina’s Supreme Court Ordered the case be remanded to the lower (family) court and that the adoption be finalized

Ordered no best interest hearingDusten and Cherokee asked the S.C. supreme court to rehear this decision. It was deniedDusten and Cherokee asked the Supreme Court to stay the adoption. It was denied. Slide30

What happened to Veronica?

Oklahoma

courts recognized the South Carolina adoption

Dusten

and Cherokee asked Oklahoma Supreme Court to stay the adoption. This was granted.

After mediation failed, the Oklahoma Supreme Court lifted the stay and Veronica was removed from her father’s home and placed with the South Carolina Couple

Dusten and Cherokee drop all civil actionsDusten and Veronica continue to have contact at the discretion of the adoptive familySlide31

Rights of Tribes Under ICWA

Right to jurisdiction and to hear and determine child custody cases of member children in a manner consistent with tribal code/tradition

Exclusive, concurrent, and right to transfer

Right to provide child welfare services to member children and families

Right to intervene in foster care placement or TPR

Upon intervention the rights/due process granted to all parties

Right to full faith and credit of tribal court law and ordersRight to petition for invalidation of a court order in violation of certain ICWA provisionsRight to define placement preferences, and extended family Slide32

What We Know

Thanks to all of our efforts

ICWA still stands as law

We did everything we could to help Veronica and her family

Now we must turn our attention to helping and protecting all of the children in our communitiesSlide33

What We Do Now

It starts now, and it starts at home…

Know your rights under ICWA and help your community members know their rights

Consider what you are personally doing to help vulnerable kids in your community

Be a foster parent… or a foster auntie or foster uncle

Share ICWA success storiesSlide34

Request the DOJ conduct an

investigation of

the adoption Indian children

A

sk BIA to promulgate regulations pursuant to ICWA and to

update

ICWA state court guidelines

Advocate with state policymakers to strengthen ICWA implementation

What Else We Do NowSlide35

National Indian Child Welfare Association

Protecting Our Children, Preserving Our Culture

www.nicwa.org